IN THE SUPREME COURT OF BRITISH COLUMBIA

Transcription

1 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Between: And: Ross v. Dupuis, 2017 BCSC 2159 Kailee Ross Date: Docket: M17337 Registry: Nelson Plaintiff Daniel Dupuis Defendant Before: The Honourable Mr. Justice G.C. Weatherill Reasons for Judgment Counsel for the Plaintiff: Counsel for the Defendant: Place and Dates of Trial: Place and Date of Judgment: M.A. Huot J. Mackoff M. Tucker, Articled Student D. Graves Nelson, B.C. October 31 and November 1 3, 6 9, 2017 Nelson, B.C. November 27, 2017

2 Ross v. Dupuis Page 2 INTRODUCTION [1] On July 31, 2012, the plaintiff was the driver of a 1997 Ford Expedition travelling northbound on Highway 22 near Castlegar, British Columbia. The plaintiff s then two-year old son was in a car seat in the middle rear seat of the vehicle. The defendant was driving in the opposite direction at high speed in the plaintiff s lane passing other vehicles. The plaintiff was forced to brake sharply and swerve into a ditch in order to avoid a head-on collision (the MVA ). [2] The defendant has admitted liability. [3] The issue for determination is the quantum of damages to which the plaintiff is entitled for the injuries she sustained in the MVA. EVIDENCE AT TRIAL [4] The plaintiff is a 35-year-old married mother of two young children, McKenna now 9 and Tanner now 7. [5] The plaintiff was born and raised in Castlegar where she has lived her entire life, except for approximately 18 months when she attended post-secondary school in Lethbridge, Alberta and Kelowna, British Columbia. [6] The plaintiff was raised in a close-knit Italian family. She described her childhood as wonderful. She had loving parents and siblings, and enjoyed many outdoor activities growing up with them, including, snow skiing, water skiing, golf, fishing and snowmobiling. The plaintiff s mother, Kimberly Tassone ( Kimberley ), described the plaintiff as a happy, energetic and active child who loved sports and recreation. [7] The plaintiff has a form of dyslexia which resulted in her finding high school academically challenging. She has always enjoyed athletics, hence, her focus during her school years was on playing sports. She played volleyball and fastball and received a scholarship to play varsity basketball at Lethbridge College. However, her attendance there was short lived due to her dyslexia. Her wish to

3 Ross v. Dupuis Page 3 become a Physical Education teacher was dashed. She attended the Sylvan Learning Center in Kelowna for approximately 18 months which gave her a better understanding of how to cope with her learning disability. [8] The plaintiff decided to combine her love of the water with her desire to teach children by becoming a lifeguard. She obtained all of the necessary certifications and in September 2002, she was hired by the Central Kootenay Regional District Recreational Department ( CKRD ) in Castlegar as a part-time lifeguard and swimming instructor. [9] Working as a lifeguard became the plaintiff s passion. In April 2005, she was promoted to a full time position as a Lifeguard Supervisor 1 with a corresponding increase in pay and full benefits. She settled into the job and loved it. Both the plaintiff and Megan Pilla, currently the CKRD s head lifeguard who was recruited and mentored by the plaintiff, testified that lifeguarding is highly physical work requiring that the rigorous standards set by the National Lifeguard Society be met. [10] In addition to having to demonstrate all of the swimming strokes and diving and rescue techniques, certification requires the ability to lift a 25-pound weight underwater and swim with it for 5 metres as well as the ability to pull people out of the deep end of a pool. [11] In 2006, the plaintiff married Cory Ross ( Cory ). Both described their pre- MVA relationship as happy and involving many sporting and family activities. [12] McKenna was born in February 2008 and Tanner was born in February The plaintiff went on maternity leave on both occasions. She was the primary caregiver for the children and was heavily engaged in their active lives. [13] By September 2010, the plaintiff had achieved the highest level of lifeguarding certification that is available. She was a master instructor trainer. She was promoted by the CKRD to the position of Lifeguard Supervisor 2. Her duties included teaching advanced swimming and first aid courses. She received pay and

4 Ross v. Dupuis Page 4 benefits in accordance with the collective agreement that was in place. Her benefits included a superannuation pension. [14] Despite the plaintiff s promotions, she had several clashes with her superiors at the CKRD. In August 2011, there was an incident at work which caused the plaintiff significant anxiety and stress. Shortly thereafter, she resigned from her full-time position and resumed part-time employment (20 25 hours per week) in part because of the conflicts with her superiors and in part to be able to spend more time with her children. She received 15% of her pay in lieu of benefits, again in accordance with the terms of the collective agreement. Her plan was to return to full-time work in September 2013 when her daughter was in school full-time. Upon doing so, she would have placed her son in daycare at a cost of approximately $40 per day. Ms. Pilla testified that, given the plaintiff s seniority within the union, she would likely have had no difficulty returning to full-time employment. [15] Prior to the MVA, the plaintiff was generally a very active person who swam approximately one kilometre several times each week, played softball, went for walks, and participated in many other outdoor physical activities. She testified that she had occasional aches and pains from those activities and underwent periodic chiropractic and massage therapy treatments for them. The evidence shows that, since 2002, the plaintiff had attended regular massage therapy treatments with a registered massage therapist, Curtis Verigin, for neck and lower back pain as well as pain around her shoulder blades. [16] Mr. Verigin testified that, prior to the MVA, his treatments of the plaintiff were primarily preventative in nature and that the plaintiff did not complain of any specific injuries. He did not treat the plaintiff for pain to her right shoulder and over the years, he never observed the plaintiff s ability to function was limited or restricted. [17] In March and April 2011, the plaintiff saw a physiotherapist, Kaysry Gill, on six occasions for treatment of foot pain. During those appointments, the plaintiff mentioned she was also having pain in her right shoulder area. Ms. Gill s clinical note of the appointment on March 10, 2011 reads, in part:

5 Ross v. Dupuis Page 5 wondering about right shoulder pain at night ongoing right shoulder issue x 7 years, worse with softball, better with massage but does not last. [18] Ms. Gill observed on palpation that the plaintiff had tight muscles and weakness in her right shoulder blade area but also found that there was normal range of motion in the area. Ms. Gill considered that the plaintiff s shortened shoulder muscles could be contributing to her pain. During that and subsequent appointments, Ms. Gill gave the plaintiff stretching exercises to strengthen the shoulder muscles. [19] On July 17, 19, and 24, 2012, approximately one to two weeks before the MVA, the plaintiff saw a chiropractor, Dr. David Bzdel, for complaints of lower back and rib pain as well as muscle tension in her neck. She did not complain of shoulder pain during those appointments. Dr. Bzdel s treatment included manipulation of the right shoulder as a means of improving the function of the plaintiff s spine. Dr. Bzdel s assessment was that the plaintiff s neck muscle tension was possibly due to unbalancing. [20] The plaintiff testified that her shoulder and back pain prior to the MVA was more a tightness between her shoulder blades which did not interfere in any significant way with her ability to function at work or her homemaking, child care or other activities. She did all of the family s cooking and 90 95% of the housekeeping and laundry. She had the assistance of a housekeeper for three hours every two weeks. She had no driving anxiety and drove the children to all of their activities without any concerns. [21] Each of the plaintiff s mother, Kimberley, her brother, Blair Tassone ( Blair ), her sister-in-law, Des Profili ( Ms. Profili ), and Ms. Pilla confirmed that, prior to the MVA, they had not observed the plaintiff having any physical or functional limitations.

6 Ross v. Dupuis Page 6 The MVA and its Aftermath [22] The plaintiff testified that, as she swerved off the highway and into the ditch during the MVA, she instinctively reached behind her to brace her two-year-old son by fully extending her right arm out and back towards him in his car seat. [23] The plaintiff testified that, immediately after the MVA, she was in shock and felt pain everywhere. The plaintiff s mother, Kimberley, was a paramedic and attended the accident scene. She described the plaintiff as being pale, cold, clammy, and in shock. She was crying and seemed inconsolable. The plaintiff s husband also attended the scene. He testified that the plaintiff was agitated and reported being very sore. He observed that the undercarriage of the plaintiff s vehicle was embedded in the dirt. It was removed from the ditch by a tow truck. [24] The plaintiff was examined at the hospital in Castlegar by an emergency room physician. She complained of pain in the area from the back of her neck across the top of the shoulders and in her lower back. The physician who saw her did not consider whether the plaintiff had suffered an orthopaedic injury to her shoulder as that was not her focus. She diagnosed that the plaintiff had a soft tissue injury to her neck and back and released her with various pain medication prescriptions. [25] The plaintiff s brother, Blair, testified that the plaintiff described what had happened during a telephone call he had with her shortly after the MVA, including that she had reached back to brace her son. [26] The plaintiff s husband, Cory, testified that on the evening of the MVA, the plaintiff seemed out of sorts and complained of being very sore all over. He testified that she told him she had twisted around and extended her right arm to brace their son during the MVA. [27] On August 2, 2012, the plaintiff went to see her chiropractor, Dr. Bzdel. He was not there and she was seen by his locum, Dr. Salmon, whose note of the consultation reads:

7 Ross v. Dupuis Page 7 MVA July 31, Veered over bank to avoid a head-on collision with a vehicle in her lane. When the car came to a stop, her right foot was on the brake and she was leaning to the right. She had shoulder (thoracic spine) pain and neck pain with lower back pain being the worst. No bruising. Had previous back pain aggravated by normal range of movement. Right foot numbness at night when she was in bed. There was no headache. She was off work. [28] The plaintiff spent the aftermath of the MVA at home trying to recover from her pain. Her mother, Kimberley, and grandmother, Ms. Karen Smith ( Ms. Smith ), assisted with the housekeeping, cooking, childcare and driving, as well as with the plaintiff s own personal care and hygiene. Kimberley, Cory and Ms. Pilla each testified that the plaintiff seemed depressed, was always tired, was in obvious pain, and was generally unable to function. [29] On August 7, 2012, the plaintiff saw Mr. Verigin complaining of significant right shoulder pain which radiated up to her neck and down her right arm. She also complained of a debilitating headache and pain on right side of her lower back. Mr. Verigin s contemporaneous clinical notes indicate the plaintiff told him that during the MVA she immediately felt a pulling sensation to the neck and right shoulder/upper arm. Mr. Verigin testified that the plaintiff presented as being both physically and emotionally traumatized, reporting specific shoulder and back pain that was unrelated to the complaints she had prior to the MVA. Although not mentioned in his contemporaneous notes, Mr. Verigin distinctly recalls the plaintiff telling him that she had tried to protect her son in the back seat by extending her right arm and reaching back to him. [30] On August 10, 2012, the plaintiff went to see her family doctor, Dr. Megan Taylor, but she was away and the plaintiff was seen instead by an associate in the office, Dr. Erica Alex. At the time, Dr. Alex had been a physician for only two years. Dr. Alex testified that she has no recollection of the plaintiff s visit and based her evidence on the notes that she made during the examination. Her notes reflect that the plaintiff reported tenderness in her right sacroiliac, gluteal and hip areas. There is no indication of shoulder pain being reported. Dr. Alex s notes indicate that the plaintiff had full rotational range of motion in her shoulders and that there were NO

8 Ross v. Dupuis Page 8 new issues. Dr. Alex testified that this note meant that there were no issues arising from the MVA. [31] On that same day, August 10, 2012, the plaintiff told an adjuster of the Insurance Corporation of British Columbia ( ICBC ) that she had pain in her back, neck, and shoulders. [32] The plaintiff testified that after approximately two to three weeks at home trying to recover, her right shoulder became very painful after she reached for some Saran Wrap. She testified that the pain radiated to her upper arm and chest and that it was very different from the pain she previously had in her shoulder area prior to the MVA. It was in a different area and was much more localized. [33] During the month of August 2012, the plaintiff saw her chiropractor nine times including on August 28 and 29. Eight of those appointments were with Dr. Bzdel. She also saw Mr. Verigin six more times. She did not complain of right shoulder pain during any of those visits. Rather, her complaints related to lower back and right hip pain. The plaintiff did not mention the saran wrap incident to either Dr. Bzdel or Mr. Verigin. [34] However, during the plaintiff s next appointment with Dr. Bzdel on September 4, 2012, she did complain of right shoulder pain. After his assessment of her two days later on September 6, 2012, Dr. Bzdel diagnosed a right rotator cuff strain with impingement. After nine more treatments between September 10 and October 16, 2012, Dr. Bzdel reported to ICBC that the plaintiff was suffering from acute right shoulder pain, neck pain and back pain. In his report dated January 10, 2012, he described the plaintiff s right shoulder injury as chronic and severe. [35] On September 11, 2012, the plaintiff visited her family doctor, Dr. Taylor, complaining of pain and decreased range of motion in her right shoulder, pain along the right side of her mid and lower back and pain in her right knee. She also complained of poor sleep, anxiety when driving, and frustration with her slow

9 Ross v. Dupuis Page 9 recovery and not being able to return to work. Dr. Taylor diagnosed a right rotator cuff and right biceps tendonitis, a lumbar sprain/strain and a right knee sprain. [36] On September 28, 2012, the plaintiff was seen by her physiotherapist, Ms. Gill, who assessed her as having limited function, range of motion and tenderness in her right shoulder possibly from a strained or torn right rotator cuff. She also diagnosed right hip tenderness and a lower back strain including in her right sacroiliac joint. Ms. Gill described the plaintiff as having significantly more pain, stress and reduced shoulder range of motion than had been the case when she last saw her in April [37] During the period between September 2012 and April 2015, Ms. Gill treated the plaintiff 79 times. During one of the earlier appointments, Ms. Gill has a distinct recollection of the plaintiff telling her that, during the MVA, she had reached back with her right arm extended to protect her son. [38] The plaintiff was treated by Mr. Verigin on seven additional occasions between September 4 and October 22, It was evident to him that his massage therapy treatments were not resolving her symptoms. During his treatment of her on October 1, 2012, he questioned whether she had suffered a right rotator cuff tear. [39] In September 2012, the plaintiff attempted to return to work on a graduated program without success. [40] On October 25, 2012, CKRD advised the plaintiff that she would not be permitted to return to work until she had completed a comprehensive gradual return to work plan which included becoming re-certified by the National Lifeguard Society. She was advised by her doctor that she was physically unable to attempt recertification. [41] Blair testified that he saw the plaintiff during Christmas 2012 and that she was still in pain, seemed lethargic and down and emotionally drained. Blair said that his sister was not the same person she had been before the MVA. She was not

10 Ross v. Dupuis Page 10 keeping her house tidy and there seemed to be tension between the plaintiff and Cory, her husband. [42] Over the course of the next two years, the plaintiff underwent extensive physiotherapy and massage therapy as well as chiropractic treatments for her right shoulder. She had cortisone injections, prolotherapy, pool therapy, and counselling. She was referred to several different orthopaedic surgeons and took various prescribed medications to help manage her pain, including Naproxen, Flexeril, Tylenol 3, Tramacet and Effexor. Her symptoms did not improve. [43] In 2014, the plaintiff re-applied to CKRD for the positions of Supervisor 1 and 2, both of which had become available. With the assistance of her union, she was re-hired as a Supervisor 1, retroactive to October 1, 2013, but only if she was able to provide medical clearance from a qualified physician. Her medical condition was such that she was unable to do so. [44] On February 21, 2014, Dr. Taylor referred the plaintiff to an orthopaedic surgeon, Dr. Seth Bitting, for her worsening shoulder pain. He took a full history from her and assessed her again on March 14, April 23, and August 12, During the latter assessment, he recommended arthroscopic surgery on an expedited basis. [45] The surgery took place on September 3, Dr. Bitting found a mediumsized rotator cuff tear measuring 2 cm x 1 cm as well as a superior labral tear and significant biceps tendinitis. He surgically repaired the tears, released the long head of the biceps tendon, and performed subacromial decompression and acromioplasty. [46] Following the surgery, the plaintiff s right arm was immobilized in a sling for approximately three months. She relied heavily on her husband, her mother and her grandmother for support, which included all cooking and housekeeping, child care, driving and her personal care and hygiene. The plaintiff attended physiotherapy and massage therapy sessions and did the recommended exercises.

11 Ross v. Dupuis Page 11 [47] In August 2015, with the assistance of her union, the plaintiff obtained new employment working part-time as a cashier at the CKRD s landfill operations. She did not enjoy the work. [48] In February 2016, the plaintiff became employed in her current position as a sales and service coordinator for a company in Castlegar called Kootenay Columbia Home Medical Equipment ( KCHME ). She earned $16 per hour initially and in June 2017, her wage was increased to $18 per hour. She receives no employment benefits or pension. The plaintiff is happy in her new job. [49] The plaintiff testified that before the MVA, her plan was to become a paramedic for the B.C. Ambulance Service once her children were old enough to be on their own if she was called out when her husband was not at home. Both her mother and her sister-in-law, Ms. Profili, were paramedics and she was very interested in following their career. [50] Ms. Profili has been a paramedic for 13 years. She is also an instructor for the paramedic training courses. She described being a paramedic as a physically demanding job, requiring significant upper body, shoulder and back strength. [51] Kimberley testified that the plaintiff always seemed to be interested in becoming a paramedic and was particularly interested in the first-aid aspects of the job. There was no question in Kimberley s mind that a paramedic career was in her daughter s future. Ms. Profili also testified that, prior to the MVA, the plaintiff had been looking forward to being able to start her paramedic training. This evidence was confirmed by Cory, the plaintiff s husband. [52] The plaintiff anticipated that she would begin her paramedic training in approximately 2024 on a part-time basis in Nelson. It would have involved taking two separate courses at a total cost of approximately $15,000. She would take the courses on a part-time basis over an approximate 16-month period. The plaintiff would have also worked part-time as a lifeguard. Once hired as a paramedic, the plaintiff s plan was to reduce her shifts as a lifeguard to approximately 20% of her

12 Ross v. Dupuis Page 12 time and work as a paramedic for the remainder of her time. The plaintiff testified that, as a result of her MVA-related injuries, she is unable to meet the physical requirements necessary to qualify as a paramedic. [53] Michelle Greene, who is involved in the recruitment and hiring of paramedics for the British Columbia Emergency Health Services, testified regarding the courses and other prerequisites to being hired as a paramedic in a smaller community like Castlegar. In addition to the Emergency Medical Responder and Primary Care Paramedic courses that must be taken and passed, the latter of which involves intensive classroom study of inter alia, anatomy and physiology, an applicant must possess a Class 1, 2 or 4 British Columbia driver s licence, a minimum Grade 12 education, a clean driving record, and demonstrate a number of character traits including good judgment, independence, maturity and leadership skills. [54] Ms. Greene indicated that the plaintiff s first aid background and lifeguarding history as well as her living and wanting to stay in the Castlegar would be positive attributes during the interview process. Ms. Greene also provided evidence regarding the current pay scales for paramedics in British Columbia. [55] Ms. Profili has taught many paramedics with dyslexia and other challenges. She testified that accommodations such as longer exam writing times are often made in such circumstances. She described the required courses as not overly difficult for anyone who is dedicated and prepared to put in sufficient time and effort. Ms. Profili testified that there is currently a shortage of paramedics in the Castlegar area and that qualified paramedics can work as many shifts as they wish. Paramedics are not precluded from working in other jobs as long as they are able to respond to calls as they come in. [56] The plaintiff estimates that her shoulder is now 80% better. She still has pain any time she performs repetitive activities. She is unable to do a front or back crawl while swimming, lift heavy weights, ski, throw a ball or do repetitive housekeeping duties (stirring, sweeping, vacuuming, etc.) without experiencing pain. She no longer has the strength to perform the life-saving manoeuvers required for

13 Ross v. Dupuis Page 13 employment as a lifeguard. She is unable to stand or sit for long periods of time without lower back pain. She has trouble sleeping at night. Her pre-mva weight of 225 pounds has increased to her current weight of 280 pounds. She testified that she feels as though she is not the same person she was before the MVA. [57] Kimberley testified that the plaintiff does not have the enthusiasm for life that she had before the MVA her confidence level is significantly lower, she seems depressed and lethargic and does not want to try new things. The plaintiff has become much more dependent on Kimberley. She has become impatient with her children and does little cooking or housekeeping, which has led to some tension between the plaintiff and Cory. Cory testified that the plaintiff is a totally different person than she was before the MVA. [58] Ms. Profili testified that the plaintiff has definite functional limitations that she did not have before the MVA. She is not as active and routinely asks others for help with physical tasks. Ms. Profili was confident that the plaintiff would not be able to perform the physical tasks necessary to become a paramedic. [59] The plaintiff testified that, in addition to her MVA-related physical injuries, she continues to suffer emotionally from the MVA. She has driving anxiety and tries to avoid driving whenever she can, particularly at night. Her mother and grandmother have taken on most of the driving that the plaintiff otherwise would have done. [60] The plaintiff also struggles emotionally with being unable to contribute financially to her family as much as she had before the MVA and with having to rely on her husband for support. She feels a loss from her inability to perform as many cooking and housekeeping tasks as she did before the MVA and from being less able to participate in activities with her husband and children. Sometimes she struggles to get out of bed in the morning. She has had to learn to accept that she can no longer work as a lifeguard and will never become a paramedic. [61] Cory testified that he and the plaintiff have had to put their family s life on hold because they have had to deal with many issues brought on by the plaintiff s injuries,

14 Ross v. Dupuis Page 14 including financial burdens and stress in their relationship. The plaintiff is able to fully function for only short periods of time. She continues to take anti-depressant medication and suffers from driving anxiety. Cory emphasized the emotional toll of not being able to continue working as a lifeguard has had on the plaintiff. [62] The plaintiff testified that she is in favour of attending a chronic pain clinic as recommended by her physician, Dr. Taylor, but that it is something she has been unable to afford. She continues to undergo massage therapy with Mr. Verigin approximately once per month for ongoing pain management. [63] The plaintiff acknowledged on cross-examination that she is involved in some basketball and hockey coaching/management and plays softball but not for a full game and only at first base where she is not required to throw hard. She also acknowledged that her right shoulder is sometimes pain free and that, when it is painful, she is able to tolerate it. Plaintiff s Medical/Clinical Experts [64] All of the plaintiff s expert witnesses were qualified without debate to give the opinions they expressed in their respective reports. Dr. Megan Taylor [65] Dr. Taylor has been the plaintiff s family doctor since August She testified that, prior to the MVA, she saw the plaintiff regularly regarding routine medical issues. She described the plaintiff as having been obese and somewhat of an anxious person but otherwise as being in reasonably good health with no chronic medical concerns. She had never treated the plaintiff for headaches or for right shoulder or back problems before the MVA. [66] Dr. Taylor first saw the plaintiff post-mva on September 11, The plaintiff presented with pain and spasms in her right shoulder, right knee and mid/lower back. She reported not sleeping well and being anxious and frustrated over her inability to return to work. Dr. Taylor found that, although the plaintiff s neck s range of motion was normal, the range of motion in her lumbar and thoracic

15 Ross v. Dupuis Page 15 spine was significantly diminished. Dr. Taylor diagnosed a Grade 2 injury to the plaintiff s upper and lower back, a right rotator cuff and bicep strain/impingement syndrome, a lumbar strain and a right knee strain. Dr. Taylor recommended physiotherapy and massage therapy, continued chiropractic treatments, and exercise. Dr. Taylor also prescribed anti-depressant medication for what she diagnosed as major depression with significant anxiety. [67] Dr. Taylor saw the plaintiff again on September 26, October 3, 16 and 26. The plaintiff had shown little, if any, improvement. On October 26, 2012, Dr. Taylor injected the plaintiff s right shoulder with cortisone in an attempt to settle the pain the plaintiff was experiencing. [68] Dr. Taylor continued to regularly treat the plaintiff after October 26, 2012, trying various medications and recommending various modes of therapy. [69] Dr. Taylor s expert report is dated October 5, She opined that, as a consequence of the MVA, the plaintiff sustained a soft tissue injury to her neck, upper back and lower back as well as a tear of the rotator cuff (supraspinatus tendon), labrum and biceps tendon of the right shoulder. She opined that these injuries resulted in the plaintiff having chronic pain in her neck, lower back and right shoulder as well as chronic headaches. [70] During her cross-examination, clinical records of Ms. Gill and Dr. Bzdel, indicating that the plaintiff had a history of shoulder pain pre-mva, were put to Dr. Taylor. She responded that whatever the plaintiff went through prior to the MVA was not enough to impair her ability to function because, given that she was her family physician, she is confident that the plaintiff would have sought her help if that had been the case. [71] Dr. Taylor agreed on cross-examination that, if the plaintiff has suffered a rotor cuff tear injury during the MVA, it is very likely that she would have been in significant and immediate pain and would have reported it to medical practitioners. She agreed that the MVA is unlikely to have been the cause of the plaintiff s

16 Ross v. Dupuis Page 16 shoulder pain if the pain did not start until two or three weeks later. She also agreed that a tear of the superior labium anterior/posterior is common among baseball players, but disagreed that tears to the rotator cuff were common for them. She also opined that it would be unusual for a person to suffer a rotator cuff tear simply by reaching with the arm without force. [72] Dr. Taylor agreed that the plaintiff s depression symptomology has largely resolved and that her ongoing neck pain is likely radiating from her right shoulder. She recommends that the plaintiff continue with massage therapy and daily exercise. She also recommends that the plaintiff have physiotherapy at least once every four to six weeks to ensure proper exercise techniques. [73] I found Dr. Taylor to be an impressive witness who testified throughout in an objective and helpful manner. I have no hesitation accepting her opinion in its entirety. Dr. Zeeshan Waseem [74] Dr. Waseem is a physiatrist who performed an independent medical assessment ( IME ) of the plaintiff from a physical and rehabilitation medical perspective on October 25, His expert report is dated November 10, [75] Dr. Waseem noted abnormal muscle tone and texture of the supporting musculature of her cervical spine, increased tension and weakness in the right shoulder muscles, reduced shoulder and lumbosacral spine range of motion, pain on the right shoulder and in the right lumbopelvis both within well demarcated anatomical distributions and weakness in the right hip. [76] Dr. Waseem noted that the plaintiff had no pain or abnormalities between her shoulder blades where he understood her pre-mva pain had been located. [77] Dr. Waseem performed a series of tests designed to stress the shoulder and lower back structures. He also tested the plaintiff s pain behaviour to determine

17 Ross v. Dupuis Page 17 whether her reports of pain were exaggerated or amplified. He concluded that they were not. [78] Dr. Waseem opined that the plaintiff suffers from the following: a) chronic soft tissue (myofascial) pain in her cervical spine (neck); b) right shoulder impingement syndrome, which causes pain because the shoulder structures get caught on the outer edges; c) right shoulder labral (cartilage attached to the outer rim of the shoulder socket) dysfunction which is still not fully back to normal after her surgical repair; d) right acromioclavicular joint dysfunction (pain); e) right sacroiliac joint pain; and f) right hip pain (bursitis). [79] Dr. Waseem s opinion is that the plaintiff s injuries were likely caused by the MVA, based in large part on the plaintiff s shoulder and lower back injuries being consistent with the mechanism of the MVA, as he understands it and on the absence of any other event or injury that would explain her condition. [80] Dr. Waseem s opinion is that the plaintiff s MVA-related injuries are chronic, and that the prognosis for further recovery is poor. The plaintiff s right shoulder impairment will limit her from repetitive and sustained movements of it, overhead reaching, and lifting more than 10 pounds. Her lumbopelvis impairments will limit her from repetitive and sustained bending. He opined that the plaintiff is medically precluded from working as a lifeguard and from intensive physical activity. Her recreational pursuits will be curtailed. [81] Dr. Waseem recommends that the plaintiff continue her home exercise program, have the benefit of an occupational therapist for four to six in-home therapy

18 Ross v. Dupuis Page 18 and activation sessions and for advice regarding proper body mechanics to prevent re-injury as well as adaptive equipment/devices to assist the plaintiff s level of activity within her home. He also recommends monthly physiotherapy and massage therapy for supportive care. [82] Although Dr. Waseem is obviously a knowledgeable and experienced physiatrist, his practice is primarily, if not exclusively, in Ontario. He travels to Vancouver to conduct medical-legal assessments of plaintiffs, often scheduling nine assessments per day. He works with a chiropractor who takes the patient s history before he sees the patient himself because it is more efficient. [83] In this case, Dr. Waseem s physical examination and assessment of the plaintiff took only ten to fifteen minutes, although he testified that he spent additional time with the plaintiff confirming with her the medical history that had been obtained by his colleague. [84] I am concerned by what appears to be a growing trend among some medical practitioners to view medical-legal reports as a profit-motivated business to be run as efficiently as possible. I find it difficult to accept that any medical specialist, regardless of experience and expertise, is able to accurately opine on the cause of a patient s injury by simply reviewing the clinical records prepared by others and conducting a 15-minute physical examination in respect of an injury sustained over four years after a motor vehicle crash. My concern is heightened in this case by the fact that the primary interview of the patient was conducted by someone other than the expert. This form of assumption-based, mass-produced, cookie cutter opinion evidence is generally unconvincing and unhelpful to the court. [85] Dr. Waseem s opinion is little more than an analysis of what is contained in the clinical records prepared by others. In my view, a more in-depth scrutiny is required of medical experts who choose to opine on the cause of an injury. [86] For those reasons, I have given Dr. Waseem s opinion evidence less weight than I may otherwise have given to it. However, I, nevertheless, found some of his

19 Ross v. Dupuis Page 19 answers to questions put to him on cross-examination to be compelling as they provided helpful guidance and insight into the nature of the plaintiff s shoulder injury and how the pain may have been masked by other pain and not specifically identified until many days after the MVA. Dr. Seth Bitting [87] Dr. Bitting is the orthopaedic surgeon who performed surgery on the plaintiff s shoulder on September 3, He performed follow up assessments of the plaintiff on October 27, 2014, January 27, 2015, March 27, 2015, June 3, 2015 and September 22, His expert reports are dated April 29, 2015 and October 13, Dr. Bitting also provided a rebuttal report dated November 3, 2016 to the expert report of Dr. Hirsch which was relied upon by the defendant. [88] When Dr. Bitting assessed the plaintiff on September 22, 2015, he found that the plaintiff s right shoulder range of motion and her rotator cuff power were both very good although she continued to have positive impingement signs. He opined that it is unlikely that the plaintiff will be able to return to work as a lifeguard. [89] Dr. Bitting opined that the plaintiff needs to continue focusing on regaining full range of motion and strength in the rotator cuff and parascapular musculature surrounding her right shoulder. He opined it is likely that the plaintiff will be restricted by discomfort from her future activity levels and that she is unlikely to fully recover from her shoulder injury. She will require ongoing treatment in the form of chronic pain management and focused physiotherapy and massage therapy. He conceded on cross-examination that the cost of a chronic pain specialist is likely to be covered by British Columbia s Medical Services Plan. [90] Based upon the assumption that, during the MVA, the plaintiff had extended her right arm backwards and braced her son or his car seat, Dr. Bitting opined that there would likely have been sufficient traction force exerted on her right shoulder to have caused her right shoulder rotator cuff and labral tear and related injuries.

20 Ross v. Dupuis Page 20 [91] Dr. Bitting agreed on cross-examination that the plaintiff would have been in immediate pain from such tears in her shoulder structures and that it was unusual for her not to have reported that specific pain for several weeks. However, he went on to observe that the onset of pain is often unpredictable when there has been significant trauma and that it is common for patients not to report pain in a specific area until they attempt normal day-to-day activities which aggravates the body s structure in that area. [92] Dr. Bitting was an excellent witness who testified in an objective, sincere and helpful manner. I have no hesitation accepting his opinions. Mary DeVan [93] Ms. Devan is a registered clinical counsellor who has treated the plaintiff since October Her expert reported dated October 28, 2016 was introduced in evidence without the requirement that she attend the trial. [94] The plaintiff was referred to Ms. DeVan after the MVA for treatment of her emotional distress and frequent episodes of crying and irritability as a result of having to cope with the decrease in her overall functioning, her inability to work, her difficulty in taking care of her children, her inability to engage in the physical activities she had enjoyed prior to the MVA, and the strain in her relationship with her husband. [95] Ms. DeVan reported that, between October 12, 2012 and July 23, 2014, the plaintiff s progress varied from being hopeful that she would recover from her injuries and resume her pre-mva level of functioning to being overwhelmed by her chronic pain. [96] Ms. DeVan s treatment of the plaintiff included Cognitive Behavioral Therapy to try to decrease her driving anxiety and relaxation methods to assist her in her ability to cope.

21 Ross v. Dupuis Page 21 [97] Ms. DeVan opined that the plaintiff s anxiety and decreased emotional state were caused by the MVA. She also opined that the plaintiff s post-mva chronic pain, stress, and her inability to engage in her usual activities and to be an active parent have negatively affected her self-image and her optimism for the future. Defendant s Medical/Clinical Experts [98] Each of the defendant s expert witnesses was qualified without debate to give the opinions they expressed in their respective reports. Dr. Gabriel Hirsch [99] Dr. Hirsch is a physiatrist who conducted an IME of the plaintiff on March 29, His report is dated that same day. [100] Based upon his review of the plaintiff s clinical records and his understanding that the plaintiff had a longstanding history of right shoulder pain prior to the MVA, Dr. Hirsch opined that the plaintiff s MVA-related injuries were limited to soft tissues such as muscles, tendons and ligaments in her shoulder girdle area and her lower back, from which she had made an excellent recovery. He opined that she did not sustain any structural injury to her neck or back, but rather that the MVA aggravated her pre-existing posterior shoulder girdle condition and thereby contributed to her regional myofascial pain in her right shoulder area. Dr. Hirsch was unable to determine what portion of the plaintiff s post-mva pain was attributable to her pre- MVA condition. [101] Given his understanding that the acute pain in the plaintiff s right shoulder did not start until two to three weeks after the MVA, Dr. Hirsch was unable to formulate an injury mechanism in relation to the MVA which would have caused the structural damage found by Dr. Bitting. He opined in his report that an injury to the long head of the biceps tendon, a rotator cuff tear and a labrum lesion would have resulted in acute pain. [102] Dr. Hirsch based his opinion in large part on a radiologist s interpretive report of an MR arthrogram performed on December 11, 2012 as well as on a CT scan.

22 Ross v. Dupuis Page 22 He testified that neither scan detected any tears in the plaintiff s right shoulder. However, neither those scans nor the radiologist s report(s) interpreting them were put in evidence. Moreover, there is no evidence of who the radiologist was or of his/her qualifications. [103] Dr. Hirsch also opined that, if the plaintiff had been suffering from a rotator cuff or labrum tear prior to the imaging, he would have expected the plaintiff to have derived some relief in her pain symptoms from the injections she had been given, assuming they had been given correctly. The plaintiff reported no relief. [104] Dr. Hirsch conceded on cross-examination that he relied, for his opinion, primarily on his interpretation of the medical records of others, both before and after the MVA and that he would have liked to have had more information regarding the plaintiff s pre-mva shoulder pain complaints because he could not discern whether her pain before the MVA was in the same area as it was after the MVA. He testified that he was not sure what to make of Mr. Verigin s August 7, 2012 clinical notes, which report the plaintiff having complained of acute pain in her right shoulder. [105] In Dr. Hirsch s own words, his opinion was educated academic guesswork. [106] Dr. Hirsch also confirmed on cross-examination that many people have rotator cuff and/or labrum tears and do not know it, because the pain overflows to other areas. He stated that such injuries can result in a gentle attribution of pain or the pain can be acute. He also testified that patients often mis-describe their shoulder pain. [107] As mentioned above, Dr. Waseem provided a rebuttal opinion to that of Dr. Hirsch. Although both agree that the plaintiff suffers from low back pain, they disagree on the source. Dr. Hirsch performed only one test (Gillet Test) and formed the view that the source of the pain is soft tissue injury and mechanical posture. In contrast, Dr. Waseem performed three separate tests and was able to determine that the source of the plaintiff s low back pain is the right sacroiliac joint.

23 Ross v. Dupuis Page 23 Dr. Waseem opined that all three tests must be performed because one may be negative while the others positive for sacroiliac joint pain. [108] Dr. Waseem also disagrees with Dr. Hirsch s assessment of the plaintiff s shoulder issue on the basis that her pre-mva shoulder pain was between her shoulder blades which is anatomically and pathologically an entirely different area. Dr. Hirsch was unable to determine the source of the plaintiff s current shoulder pain and concluded it was diffuse and not specific. In contrast, Dr. Waseem found specific causes of the shoulder pain. [109] Dr. Hirsch is obviously a knowledgeable and experience physiatrist. He gave his evidence in an assertive, confident and objective manner. He was forthright about having not considered various records that had been provided to him and was quick to concede that he had misinterpreted others. He was an impressive expert witness and I accept his opinions to the extent they are based upon the facts that have been proven. I underscore that the veracity of the MRI arthrogram and CT scan relied upon by Dr. Hirsch has not been proven. Dr. Jordan Leith [110] Dr. Leith is an orthopaedic surgeon. His expert reported dated May 5, 2014 pre-dates the plaintiff s shoulder surgery. It was introduced in evidence without the requirement that he attend the trial for cross-examination. [111] Dr. Leith opined that the principle of diagnosing any shoulder pathology arises from a thorough history and physical examination that is highly suggestive of an acute injury to the labrum or rotator cuff tendons. Yet he neither had the benefit of either a complete history or a physical examination of the plaintiff. Rather, his opinions are based solely upon a review of the clinical records in existence at the time of his report. He noted that there was no indication that any of the structures of the right shoulder joint were injured at the time of the subject accident. He did not know that, four months later, the plaintiff would undergo surgery during which significant tears were found in that very structure.

24 Ross v. Dupuis Page 24 [112] Dr. Leith stated, at p. 7 in his report, that: A SLAP tear is a tear of the Superior Labrum Anterior to Posterior. This is a less prevalent lesion most often seen in overhead athletes and rarely if ever seen from motor vehicle accidents. It is the result of high energy torsional forces applied to the shoulder as seen with pitchers. It can also result from a significant compressive force combined with rotational torsion in a motor vehicle accident. To tear the anterior inferior labrum one must have a dislocation or a partial dislocation of the shoulder joint, both of which are immediately evident to a patient when a traumatic event occurs to cause a dislocation or partial dislocation. [113] Dr. Leith went on to opine that the clinical presentation from an acute SLAP tear is immediately evident with acute pain localized deep in the joint and does not present with superficial tenderness or pain about the shoulder girdle. [114] At p. 8 of his report, Dr. Leith further stated that: the mechanism of not striking another vehicle or hitting anything solid and coming to an abrupt stop is not consistent with anything that would cause an acute shoulder dislocation, rotator cuff tear or labral injury. [115] Dr. Leith was not asked to assume that the plaintiff had extended her right arm backwards to brace her son during the MVA. [116] Given the timing of Dr. Leith s report and the assumptions he relied upon, which are not consistent with the evidence presented at trial, I decline to place much weight on his opinions. ANALYSIS Credibility/Reliability [117] As is the case in most personal injury actions, the most important witness is the plaintiff herself. Once an assessment of the credibility and reliability of the plaintiff s evidence has been made, the court is generally in a position to determine causation, usually with the assistance of opinion evidence from qualified medical experts.

25 Ross v. Dupuis Page 25 [118] A plaintiff who accurately describes her symptoms and circumstances before and after the collision without minimizing or embellishing them can reasonably anticipate that the court will find his or her evidence to have been credible and reliable. [119] As Mr. Justice Ehrcke cautioned in White v. Stonestreet, 2006 BCSC 801, at paras , it is important to examine more than the temporal connection between an event and the alleged symptoms after the event. Other events happening at the same time must also be examined when determining causation. Moreover, the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods of time beyond the normal or usual recovery: Buttar v. Brennan, 2012 BCSC 531, at para. 24. [120] Overall, I found that the plaintiff to be a genuine and honest witness who testified in a sincere, forthright, and credible manner. Her credibility was enhanced by her willingness to agree, without hesitation, with questions put to her on crossexamination when appropriate even when her answers went against her interest, for example, her pre-existing pain symptoms and her candid acceptance of statements attributed to her in the various clinical records of physicians who were not called to testify on the basis that if it s recorded there I probably said those things. However, she was also steadfast when describing the pain she experienced after the MVA and the effect it had on her, although she had difficulty explaining why some of the clinical records in the month following the MVA make no mention of her having right shoulder pain immediately after the MVA. The best she could do was to say I don t remember. [121] Each of Ms. Pilla, Ms. Gill, Dr. Bzdel, Ms. Greene, Kimberley, Cory and Ms. Profili gave his/her evidence in a forthright, objective and helpful manner. I have no hesitation accepting their evidence in its entirety. [122] Generally, I found Mr. Verigin to be an objective, sincere and helpful witness when it came to his discussions with and observations and assessments of the plaintiff during his treatments of her. However, he became somewhat of an

26 Ross v. Dupuis Page 26 advocate for the plaintiff when the questioning of him permitted him to stray into areas beyond his personal knowledge, such as the plaintiff s ability to function as a lifeguard. [123] I found the plaintiff s brother, Blair, to be excessively anxious to help his sister s case. His testimony was, in many respects, overly rehearsed and replete with hearsay. I give it little weight. [124] Dr. Alex acknowledged that she had no recollection of having examined the plaintiff on August 10, 2012 and that her evidence was reconstructed based entirely on her clinical note of that date. It was clear that her evidence regarding her assessment of the plaintiff and the tests she said she performed were based on what she usually does. She did not attempt to differentiate between what she does now, with eight years of experience, and what she did then with only two years of experience. I find that, beyond the brief clinical note she made, and given the time constraints she said she was under at the time, Dr. Alex s evidence was not reliable and reject it to the extent it is inconsistent with the testimony of those evidence whose opinions I accept. Causation [125] The central issue in this case is causation. [126] The but for test is the general test for factual causation: the plaintiff must prove on a balance of probabilities that but for the defendant s negligence, she would not have suffered her injuries. The defendant s negligence must have been a necessary cause of the injury. This test was summarized and affirmed by the Supreme Court of Canada in Clements v. Clements, 2012 SCC 32, at paras (see also: Ediger v. Johnston, 2013 SCC 18, at paras ; Resurfice Corp. v. Hanke, 2007 SCC 7, at paras ). [127] The plaintiff need only establish a substantial connection between the injury and the defendant s conduct in order to establish causation: Sam v. Wilson, 2007